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Definition

Nevada law defines stalking as willful conduct that causes another person to reasonably feel frightened or intimidated. Classic examples are following someone on the street or phoning someone repeatedly against the person's wishes.

Stalking is prosecuted as a category B felony in Nevada if it involved a threat of serious bodily harm or death.

1. What is the legal definition of stalking in Nevada?

Stalking is when a person's deliberate actions cause another person to reasonably feel frightened, terrorized, or fearful for the immediate safety of his/her family or housemates.

Stalking is usually not just one event but rather a pattern or course of conduct over time that makes the victim feel scared.

Examples of stalking behavior may include:

following someone on the street or on the road for several blocks,

loitering outside a person's home or office,

phoning someone frequently or leaving several voicemails,

repeatedly showing up unexpectedly,

vandalizing/defacing a person's property,

communicating with the person's colleagues, family, and friends for no valid reason, or

other unwanted and uninvited communications

Even seemingly harmless gestures such as sending gifts or leaving flowers at one's front door can qualify as stalking if it is done excessively or if the victim told the giver to stay away.

Note that defendants may be convicted of stalking even if they did not mean to cause fear. What matters is that the victim reasonably construed the defendant's conduct as terrorizing or harassing.1

1.1. Aggravated stalking definition in Nevada

Aggravated stalking occurs when an alleged stalker intentionally threatens the victim with death or substantial bodily harm. The threat does not need to be verbal. It can be conveyed through body language or other actions that make the victim fear for his/her safety. Examples of aggravated stalking include:

following someone on the street or on the road while visibly brandishing a gun

phoning someone frequently to say, "You're dead the next time I see you"

repeatedly showing up unexpectedly and threatening to beat up the victim

In short, aggravated stalking is stalking plus a threat to do major physical harm to the victim.2

1.2. Cyber-stalking definition in Nevada

The stalking is done using the internet, email, text-messaging, or similar means of communication; and

The defendant used these electronic means to publish or distribute information in a manner that substantially increases the risk of harm or violence to the victim.3

Currently, there is no Nevada case law that illustrates what exactly cyber-stalking is. From the wording of the statute, it seems that sending someone a barrage of annoying text messages or social media messages would not rise from the level of stalking to cyber-stalking. This is because receiving DMs alone should not "substantially increase the risk of harm or violence" to the victim.

The following hypothetical situations may qualify as cyber-stalking:

posting Craigslist messages with the victim's address and inviting people to come over for rough sex, and sending the victim links to those Craigslist ads

posting untrue, incendiary information about the victim on Facebook meant to incite people to seek him/her out and harass him/her, and sending the victim links to those Facebook posts

emailing the victim's abusive ex-boyfriend the victim's current address, and forwarding that email to the victim

2. What are the Nevada penalties for stalking?

The punishment for stalking in Nevada turns on the person's criminal history, whether it involved the internet, and if the defendant made a serious threat (aggravated stalking):4

The defendant may be placed on probation for up to 5 years instead of incarceration.

Aggravated stalking

Category B felony

2 – 15 years in prison, and

up to $5,000 in fines (at the judge's discretion)

The defendant may be placed on probation for up to 5 years instead of incarceration.

The judge may also order psychological counseling and issue a protective order mandating that the suspect stay away from the victim. Scroll down to the next question for more information about restraining orders.

2.1. Plea bargains

Depending on the case, the D.A. may agree to reduce a first-time stalking charge to a lesser offense such as disorderly conduct. They are both misdemeanors with the same penalties, but disorderly conduct carries less of a social stigma than stalking.5

3. Will there be a restraining order against me?

A judge may issue a restraining order depending on the circumstances of the case. Restraining orders require the defendant ("adverse party") to stay away from the victim for a predetermined length of time. There are two types of restraining orders:

a temporary protective order (TPO), which typically last 30 days, and

an extended protective order (EPO), which may last a full year

Judges may issue TPOs without giving defendants an opportunity to defend themselves. But defendants are entitled to a court hearing before a judge can convert a TPO to an EPO.

Courts hold defendants in contempt for defying the terms of restraining orders. The penalties for intentionally violating a restraining order turn on whether it is a TPO or EPO.6

Nevada Retraining Order violation

Penalties for violating the restraining order

Temporary protective order (TPO)

Misdemeanor:

Up to 6 months in jail, and/or

Up to $1,000 in fines

Extended protective order (EPO)

Category C felony

1 – 5 years in prison, and

up to $10,000 in fines (at the judge's discretion)

In Clark County, Family Court is responsible for issuing restraining orders in cases where the two parties are domestically related. This includes family members, (ex)spouses, (ex)partners, or roommates.

In this situation, the judge will order the defendant to permanently surrender his/her firearms and forbid him/her from possessing any more. Defendants found to possess a gun in violation of this order face prosecution for a category B felony, carrying:

1 to 6 years in prison, and

up to $5,000 in fines (at the judge's discretion)7

5. What are the defenses to Nevada stalking charges?

Which strategy would be most effective in any one Nevada stalking case turns wholly on the circumstances. The following are some typical defenses a defense attorney may explore using:

False accusations

Misidentification

Lack of stalking

First Amendment protections

There was no threat of death or severe bodily harm (in aggravated stalking cases)

5.1. The defendant was falsely accused

When two people have an argument, sometimes one person gets so angry or vengeful that he/she accuses the other of stalking just to stir up trouble.

Example: Jill kicks her roommate Nancy out when Nancy fails to pay rent. In order to get back at Jill, Nancy calls the police and falsely claims that Jill has been following her and calling her incessantly in order to intimidate Nancy into paying. If Jill gets arrested, her defense attorney would try to show that there is no evidence of Jill following or calling Nancy. The defense attorney also produces an angry text-message where Nancy told Jill that Nancy would ruin her life for making her homeless. The prosecutor realizes that Nancy probably exaggerated the truth and dismisses the charge.

Prosecutors know from experience that many of the stalking cases they get are the products of false allegations. As long as the prosecutor has insufficient evidence to prove guilt beyond a reasonable doubt, the charge should be dismissed.

5.2. The defendant was misidentified

Sometimes victims wrongly presume they know the identity of the person(s) stalking them.

Example: Haley recently broke up with John. The following week, she notices a shadowy figure in a long jacket and hat following her home at night and loitering on the street when she goes inside. Haley presumes it is John since he took the breakup badly, so she reports him. After John gets arrested, his defense attorney obtains surveillance video from various locations on Haley's route home. The video shows that the shadowy figure is not John but someone else. When the D.A. sees the footage, all charges get dropped.

Other types of evidence that may come into play in these cases of mistaken identity include photographs, audio recordings, handwriting samples, and DNA samples.

5.3. The behavior was not stalking

Behavior that may seem like stalking to the alleged victim may turn out to fall short of stalking.

Example: Alice and Bill are co-workers. One day while Bill is out sick, Alice goes on his computer to find a file. While searching, she finds a protected file labeled "journal." Curious, she manages to hack into the file. But she is horrified to read disturbing descriptions of violent things Bill wants to do to Alice. Alice reports Bill, and he gets arrested for aggravated stalking. But when the prosecutor learns that Alice broke into Bill's file without his consent or knowledge, the case gets dismissed. Although the contents of the journal were disturbing, Bill did nothing intentional to make Alice aware of it. The fact he password-protected the file is further proof that it was meant to be kept private.

Even if a self-proclaimed stalking victim is genuinely terrified, the defendant committed no crime if he/she did not willfully engage in behavior that would intimidate a reasonable person. Alice knew that Bill's password protected journal in the above example was meant only for him, and she brought her terror upon herself by snooping through what were meant to be private thoughts.

5.4. The behavior is protected by the First Amendment

Stalking does not comprise first amendment activities.

Example: Ronny is a member of a casino dealer union that is picketing outside a casino in order to rally for higher wages. Whenever casino executives enter or leave the hotel, Ronny screams accusations at them. Even though Ronny's actions of loitering by the front entrance and hurling harsh words intimidate the executives, the police at the rally do not arrest Ronny for stalking.

Ronny's demonstration in the above example is protected by the First Amendment's guarantee of free speech and assembly. The First Amendment protects peaceful protests even when they may otherwise appear or sound like stalking.

Note that the First Amendment also protects professional reporters, photographers, and news-gatherers from stalking charges, such as when they phone a person for comment or hound a witness on the street. Journalists should not face prosecution as long as they are acting within the scope of their employment for a newspaper, periodical, radio, television station or other media outlet.

5.5. There was no threat of death or severe bodily harm

A felony charge of aggravated stalking can be reduced to misdemeanor stalking if the defense attorney can show that the defendant did not threaten the victim.

Example: Iris is upset at her ex-boss Rod for firing her. She sends him hundreds of emails and voicemails and letters pleading with him to rehire her. After she leaves a voicemail where she threatens to kill Rod if he does not hire her, Rod reports her to the police. The police arrest her for aggravated stalking because she threatened his life. But when the defense attorney listens to the voicemail, the attorney realizes that Rod misheard Iris's words: She threatened to kill herself, not Rod, if he did not hire her. When the prosecutors hear the voicemail, they reduce the charges to misdemeanor stalking because no threat was made to hurt Rod.

Threatening to hurt oneself does not rise to the level of aggravated stalking. Rather, the victim must be the subject of the threat for aggravated charges to apply.

6. Can I seal my Nevada stalking conviction?

Probably yes, though the waiting period for pursuing a criminal record seal depends on the stalking charge:8

Nevada stalking offense

Record seal waiting time

First offense (misdemeanor)

1 year after the case ends

Subsequent offense (gross misdemeanor)

2 years after the case ends

Cyberstalking (category C felony)

5 years after the case ends

Aggravated stalking (category B felony)

5 years after the case ends

Dismissal (no conviction)

No waiting period

7. Can I get deported for stalking?

Yes, stalking is a deportable offense under federal law.9 Therefore, any visa- or green card-holder who gets convicted of violating NRS 200.575 may be thrown out of the U.S.

8. What is the difference between stalking and harassment in Nevada?

The Nevada crime of harassment occurs when someone threatens to harm another person's body, mental health, or property. By contrast, stalking is when someone acts in such a way that causes another person to feel frightened.

Example: James is obsessed with Whitney. He sends her an email threatening to kill her dog if she does not go out with him.10 The next day, James follows Whitney home from work by walking a few feet behind her, even when she tells him to get lost. In Nevada, James could face harassment charges for the threatening email and stalking charges for following her home so closely and against her express wishes.

Harassment and stalking are similar in the sense that the effect of both crimes is to intimidate the victim. And in many cases like in the above example, the same defendant faces prosecution for both offenses.

9. Related offenses

9.1. Nevada "peering" laws (NRS 200.603)

Nevada's "Peeping Tom" law prohibits intentionally going on another's property with the intent to spy through a window or other opening.11

9.3. Nevada "battery domestic violence" laws (NRS 200.485)

First- and second-time BDV offenses are misdemeanors as long as the incident involved no strangulation, deadly weapons or substantial bodily harm. Otherwise, BDV is prosecuted as a felony carrying potentially years in prison.13

Call a Nevada criminal defense attorney...

Our Las Vegas criminal defense lawyers have decades of experience in negotiating stalking cases to hopefully get your charges dismissed outright or reduced to a lesser offense. If you have been arrested for stalking in Las Vegas, then please call us at 702-DEFENSE (702-333-3673) for a free consultation today.

Legal References

1. A person who, without lawful authority, willfully or maliciously engages in a course of conduct that would cause a reasonable person to feel terrorized, frightened, intimidated, harassed or fearful for the immediate safety of a family or household member, and that actually causes the victim to feel terrorized, frightened, intimidated, harassed or fearful for the immediate safety of a family or household member, commits the crime of stalking. Except where the provisions of subsection 2 or 3 are applicable, a person who commits the crime of stalking:

(a) For the first offense, is guilty of a misdemeanor.

(b) For any subsequent offense, is guilty of a gross misdemeanor.

2. A person who commits the crime of stalking and in conjunction therewith threatens the person with the intent to cause the person to be placed in reasonable fear of death or substantial bodily harm commits the crime of aggravated stalking. A person who commits the crime of aggravated stalking shall be punished for a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years, and may be further punished by a fine of not more than $5,000.

3. A person who commits the crime of stalking with the use of an Internet or network site, electronic mail, text messaging or any other similar means of communication to publish, display or distribute information in a manner that substantially increases the risk of harm or violence to the victim shall be punished for a category C felony as provided in NRS 193.130.

4. Except as otherwise provided in subsection 2 of NRS 200.571, a criminal penalty provided for in this section may be imposed in addition to any penalty that may be imposed for any other criminal offense arising from the same conduct or for any contempt of court arising from the same conduct.

5. If the court finds that a person convicted of stalking pursuant to this section committed the crime against a person listed in subsection 1 of NRS 33.018 and that the victim has an ongoing, reasonable fear of physical harm, the court shall enter the finding in its judgment of conviction or admonishment of rights.

6. If the court includes such a finding in a judgment of conviction or admonishment of rights issued pursuant to this section, the court shall:

(a) Inform the person convicted that he or she is prohibited from owning, possessing or having under his or her control or custody any firearm pursuant to NRS 202.360; and

(b) Order the person convicted to permanently surrender, sell or transfer any firearm that he or she owns or that is in his or her possession or under his or her custody or control in the manner set forth in section 5 of this act.

7. A person who violates any provision included in a judgment of conviction or admonishment of rights issued pursuant to this section concerning the surrender, sale, transfer, ownership, possession, custody or control of a firearm is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and may be further punished by a fine of not more than $5,000. The court must include in the judgment of conviction or admonishment of rights a statement that a violation of such a provision in the judgment or admonishment is a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and may be further punished by a fine of not more than $5,000.

8. The penalties provided in this section do not preclude the victim from seeking any other legal remedy available.

9. As used in this section:

(a) “Course of conduct” means a pattern of conduct which consists of a series of acts over time that evidences a continuity of purpose directed at a specific person.

(b) “Family or household member” means a spouse, a former spouse, a parent or other person who is related by blood or marriage or is or was actually residing with the person.

(c) “Internet or network site” has the meaning ascribed to it in NRS 205.4744.

(d) “Network” has the meaning ascribed to it in NRS 205.4745.

(e) “Text messaging” means a communication in the form of electronic text or one or more electronic images sent from a telephone or computer to another person's telephone or computer by addressing the communication to the recipient's telephone number.

(f) “Without lawful authority” includes acts which are initiated or continued without the victim's consent. The term does not include acts which are otherwise protected or authorized by constitutional or statutory law, regulation or order of a court of competent jurisdiction, including, but not limited to:

(1) Picketing which occurs during a strike, work stoppage or any other labor dispute.

(2) The activities of a reporter, photographer, camera operator or other person while gathering information for communication to the public if that person is employed or engaged by or has contracted with a newspaper, periodical, press association or radio or television station and is acting solely within that professional capacity.

(3) The activities of a person that are carried out in the normal course of his or her lawful employment.

(4) Any activities carried out in the exercise of the constitutionally protected rights of freedom of speech and assembly.

Id.; Rossana v. State, 113 Nev. 375, 934 P.2d 1045 (1997)("[T]he crime of aggravated stalking requires something more in that the defendant must not only engage in intentional (i.e., volitional) conduct that causes a specific result, but that the defendant must threaten with the intent to cause the victim to be placed in reasonable fear of death or substantial bodily harm."); Green v. State, 119 Nev. 542, 80 P.3d 93 (2003)(" To explain, for the jury to convict Green of aggravated stalking, rather than misdemeanor stalking, it must have found that Green placed Ms. Linzie 'in reasonable fear of death or substantial bodily harm.'").

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